One Emergency After Another - Lawfare

Title: One Emergency After Another

Source: Lawfare

Date of Publication: April 14, 2026

Author: Ben Diamond, a PSVF Langer Fellow at the Center for Applied Environmental Law and Policy, an organization focused on developing constitutional, administrative, and environmental law doctrines that will allow for effective governance. At CAELP, he is focusing on the Trump administration’s use of emergency authorities related to federal energy and environmental policy. Ben holds a J.D. from Harvard Law School and a B.A. in International Affairs and Economics from the University of Georgia. Views expressed on Lawfare, and as well here with ISSE, are the author’s and not necessarily those of his affiliated institutions.

Introduction to the article: “Emergency powers would tend to kindle emergencies,” wrote Justice Robert Jackson in 1952. This warning came as the Supreme Court prohibited President Truman from using emergency authority to seize the nation’s steel mills during the Korean War. Today, Justice Jackson’s words are more relevant than ever: In February, Chief Justice John Roberts echoed Jackson’s alarm in his opinion invalidating President Trump’s use of emergency authority to impose global tariffs.

Emergency powers remove procedural and substantive constraints on executive power and enable the president to respond swiftly in times of crisis. But these powers are also easy to trigger and hard to unwind, making them vulnerable to abuse.

President Trump’s invocation of the International Emergency Economic Powers Act (IEEPA) to impose global tariffs continued a long-standing pattern of presidents using IEEPA authority as a “standard tool of foreign policy” in response to emergencies of questionable legitimacy. Beyond IEEPA, however, past presidents have generally exercised self-restraint, largely reserving non-IEEPA powers for responses to genuine crises. President Biden’s use of the COVID-19 emergency to cancel over  $400 billion in student loans and the first Trump administration’s reliance on a dubious border emergency to fund construction of a southern border wall are notable exceptions. But they are notable precisely because non-IEEPA abuses of emergency powers are so rare.

By contrast, as shown in the data on “emergency orders” discussed below, compared to President Trump, no recent president has invoked non-IEEPA emergency powers more frequently, across a broader range of issues, and as a routine tool to advance domestic policy goals. Many of these purported emergencies are dubious, as demonstrated by the president’s energy emergency declaration, which has been used as a policy tool to circumvent Congress.

Justice Jackson’s warning has become a reality. Where Congress falls short, the judiciary must step in to uphold the separation of powers. In particular, courts may need to apply a more searching form of judicial review to effectively constrain bad-faith abuse of emergency powers.

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